Antonin Scalia’s Rightful Revolution
April 21, 2016 2:11 PM EST
Stephen L. Carter
Annie Dookhan’s recent release from a Massachusetts prison has been an occasion for considerable comment, but little has been focused on how her case suggests why liberals might come to miss Justice Antonin Scalia. Not because Dookhan was innocent — she wasn’t — but because she was guilty.
Let me explain.
Dookhan, a former lab technician for the Massachusetts Department of Public Health, pleaded guilty in 2013 to charges stemming from an investigation that found she had tampered with crime-scene evidence. She confessed to, among other things, adding cocaine to samples so that they would test positive and forging reports to make it seem that she had performed tests that she had not. Estimates of the number of cases that might be affected run as high as 40,000. (More accurate numbers should be available next month.) Struggling to clean up the mess caused by what it called Dookhan’s “egregious misconduct,” the Massachusetts Supreme Judicial Court ruled last year that if defendants who have pleaded guilty seek to reopen their cases because of her actions, prosecutors cannot try them on more serious charges or, if a second conviction results, ask for stiffer sentences.
Okay, so Dookhan did a terrible thing, and because of it, a lot of people probably went to prison who shouldn’t have. What does any of this have to do with Justice Scalia?
As it turns out, a great deal. Over his final decade on the U.S. Supreme Court, Scalia led a movement to restore significance and force to the Confrontation Clause of the Sixth Amendment. The revolution began in 2004 with Crawford v. Washington, and the battle is raging still. And for those who buy into the neat media image in which the justices vote in unshakable left-right blocs, it’s worth noting that Scalia’s chief ally in the fight has been Ruth Bader Ginsburg, and his principal antagonists have lately been Samuel Alito and Sonia Sotomayor.
What’s the fight about? The Confrontation Clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.” If you’re charged with robbing a bank, the clause is the reason that you have the opportunity to cross-examine whoever is testifying against you. You have the chance to show the jury that the witness who claims to have seen you holding the gun was mistaken, or remembering wrong.
Much of the recent controversy over the Confrontation Clause is rather technical, but the dispute has largely involved the question of who counts as a witness. Everybody had always understood that the woman who swears you drove the getaway car has to tell her story in open court. So does the man who claims he sold you the gun. The prosecutor can’t simply put the lead detective on the stand and let him tell the jury what other people said you did.
But what about a laboratory technician who determined that the substance found in your trunk was cocaine? For a long time, it was generally assumed that a forensic chemist’s performance of a routine test did not implicate the Sixth Amendment. In 2008, the Scalia-Ginsburg faction astonished pretty much everybody by cobbling together a majority of the court for the proposition that, yes, the technician who did the test and signed the report has to show up and testify. Another analyst from the same laboratory who can explain how the test works isn’t good enough. In other words, there is no “forensic evidence” exception to the rule. Chemists are treated just like every other witness.
Prosecutors were aghast. Defense attorneys were elated.
Imagine: Every time a crime lab does a test and a technician certifies the result, the technician has to appear in court if the defendant so demands. Dissenters warned that chaos would result. To have the technicians sitting around for half a day waiting to testify would involve undue expense. Scalia replied that the assumptions underlying that worry are “wildly unrealistic.” Only rarely would defense lawyers actually call the forensic technicians to testify. But on those rare occasions, the technicians are no different from any other witness.
Why does this matter? Let’s get back to Dookhan. She began work some years before the Supreme Court decided that lab technicians who perform forensic tests must testify if called, but her arrest and conviction help show why the Scalia faction is right.
Had Dookhan been required to take the stand, defense attorneys might have asked how she was able to clear 500 samples a month when the average chemist analyzes between 50 and 150. They might have asked about discrepancies in her log book that would likely only have come to light had she been a witness.
The knowledge that one will have to testify about one’s actions creates a certain discipline. Either the problems in her work would have come to light much sooner, or, knowing that she would face possible cross-examination about every test she performed, Dookhan would have cleaned up her act. Either way, a lot fewer results would have been falsified.
The great majority of forensic chemists, like the great majority of people in every line of work, do their jobs with professionalism and integrity. Unfortunately, Dookhan is far from the only bad apple. And when technicians fudge their results, people can lose their liberty.
Most court-watchers, whether they admired Scalia or despised him, will remember his positions on same-sex marriage or abortion or some other hotly contested issue. But I will remember him best for the revolution he sparked in Sixth Amendment jurisprudence. I earnestly hope that it survives him.
I didn’t believe this when I began teaching the Crawford line of cases some years ago. But real-world events have changed my mind.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
To contact the author of this story:
Stephen L Carter at email@example.com
To contact the editor responsible for this story:
Brooke Sample at firstname.lastname@example.org
(The United States Supreme Court)
NOW FEDS TRYING TO DENY 2 MORE CONSTITUTIONAL RIGHTS
Fight on to stop government grab of money needed for legal defense
Published: 2 hours ago
It’s no secret that President Obama and his Democratic Party want to restrict the Second Amendment right to keep and bear arms.
In addition, First Amendment religious-freedoms protections have been challenged by Obamacare.
And freedom of speech? That’s just fine as long as it lines up with the “same-sex marriage” social agenda.
Now, a case is posing a challenge to the Fifth Amendment’s property rights and due process protections along with the Sixth Amendment’s assurance of counsel for those accused of crimes.
The U.S. Supreme Court now is posed with the question: Does the government have the right to charge you with a crime and then seize your bank accounts, checkbook, savings and other assets so that you cannot afford to hire a lawyer to defend yourself?
The Rutherford Institute has filed a friend-of-the-court brief arguing that the nation’s Founders – who wrote the Fifth and Sixth Amendments – would be horrified by the idea.
“It is Dangerous to be Right when the Government is Wrong,” explains the new American case for personal freedom, by Judge Andrew Napolitano.
“If the government can arbitrarily freeze, seize or lay claim to your property (money, land or possessions) under government asset forfeiture schemes, you have no true rights,” said constitutional attorney John W. Whitehead, president of the Rutherford Institute.
“Protecting their property from governmental abuse was just as vital to the Founding Fathers as preserving their lives and liberties, hence the Fifth Amendment.”
Whitehead said that what makes the current case so critical is “that if the government is allowed to freeze a person’s untainted – i.e., legitimate – assets, the government can essentially render them penniless and unable to hire an attorney of their choosing in order to preserve their life and liberty, which renders the Sixth Amendment utterly useless.”
The government routinely confiscates the proceeds of proven illegal activity, such as drug money.
But the new case challenges the government’s decision to take away funds that were not alleged to be part of any criminal activity. Not as a fine; just confiscation.
A second friend-of-the-court brief, filed by Michael Connelly of the United States Justice Foundation and William J. Olson, Herbert W. Titus and others of William J. Olson, P.C., frames the dispute.
“In violation of the Fifth Amendment, the district court improperly seized assets of the petitioner over which the government has no valid, current property interest, denying her the right to retain counsel of choice to fight for her rights in violation of the Sixth Amendment.”
The filing continues: “As Congress and the courts have cooperated in the vast expansion of federal asset forfeiture powers, federal prosecutors have been given tools that no one in government should have – powers which put the American people in fear not of punishment for crime, but in fear of the exercise of arbitrary power by their own government.”
The case arose during a suspected Medicare fraud case in which the government froze $45 million in assets belonging to Sila Luis, who runs health-care businesses in Florida.
She was indicted three years ago for alleged schemes to pay illegal kickbacks for patient referrals and to bill Medicare for unnecessary services.
The government claimed the businesses received about $45 million in Medicare reimbursements and sought to recover the full amount in the criminal prosecution.
But Rutherford said the businesses also earned at least $15 million in untainted funds from sources other than Medicare – and the government moved to take those funds as well.
Attorneys for Luis objected, saying the government’s decision to deprive her of her own funds too violated the Sixth Amendment. Her right to due process, they contend, would be violated by such a move.
The case is pending before the Supreme Court.
The Rutherford Institute argued in its brief that the Constitution’s Sixth Amendment provides the accused the right “to have the assistance of counsel for his defense.”
“When Congress ratified the Sixth Amendment, they understood the constitutional right to counsel as the right to counsel a defendant could afford to retain. This was evidence because the right to appointed counsel had not yet been recognized as fundamental in all criminal cases,” the brief explains.
The brief says the “forfeiture at issue here is fundamentally inconsistent with the Founding Fathers’ understanding that criminal defendants had a right to choose any counsel they could afford.”
“By depriving petitioner of legitimate and untainted funds, the forfeiture prevents her from securing chosen counsel by making it impossible for her to pay that counsel.”
The Sixth Amendment “has always encompassed the core right of securing one’s counsel of choice at one’s own expense,” the brief says.
“If fact, it was the only understanding at the time it was ratified. The idea that the government could trample on this fundamental right with a tool that was despised by the Founders is inconceivable,” Rutherford said.
One year ago, the Supreme Court affirmed that defendants do not have a right to a hearing where they can plead for permission to use the money that the government alleges is tainted. In the case, the government said it was targeting the unconnected funds because the defendant “already has spent the ill-gotten gains on luxury items and travel.”
Rutherford argued that if the case is not reversed, the Sixth Amendment requirement for due process, specifically the right to counsel, will be blown apart.
“The government asks this court to endorse an abusive practice the Founders explicitly rejected and which contradicts their understanding of the limited seizures the government could undertake prior to a finding of guilt,” the brief contends. “In so doing, the forfeiture improperly undermines petitioners’ Sixth Amendment right to counsel of her choosing.”
The filing by USJF and Olson contends the government’s claims are based “exclusively on hearsay and a finding of mere ‘probable cause.’”
“Demonstrating no reluctance to assert highly aggressive statutory interpretations, as well as positions that impair petitioner’s rights protected by the U.S. Constitution at each turn, the government seeks every possible advantage over petitioner,” the brief states.
“The government claims that its only objective is to protect the government’s financial interests, but those interests are at best speculative future interests. The only certain effect of the government’s strategy is to facilitate the prosecutor’s quest for conviction through the crippling of petitioner in her ability to defend herself from federal criminal charges.”
Such a strategy, the brief explains, “should send shivers down the backs of the justices on this court, who are tasked with guarding the rights of the people against this government’s headline pursuit of powers typifying those of a totalitarian police state.”
The inequities are obvious, the brief says.
“Under the government’s theory, the prosecution would continue to be free to employ all the assets it needs to build a case against petitioner, while petitioner would be denied full use of her untainted assets for her defense. … If the prosecution, with the assistance of the court, is allowed to exercise the type of broad authority to tie up a criminal defendant’s untainted assets, [the law] will present an open invitation to an ever more powerful federal government to deprive defendants in criminal cases of counsel of their choice, in violation of the Sixth Amendment.